GCR Q3 2019

“Consumers, by definition, include us all,” US president John F Kennedy told Congress in a 1962 speech setting out four key consumer rights. “But they are the only important group in the economy who are not effectively organised, whose views are often not heard.” Nearly 60 years later, consumers have become organised through many groups lobbying for their interests, along with their welfare becoming the explicit standard by which competition enforcement is measured. Yet they can still go unheard. Our cover feature argues that the US antitrust agencies should consider incorporating consumer surveys into the review process for mergers of companies that sell directly to purchasers.

Other competition authorities have made good use of retail-market surveys. For example, the UK Competition and Markets Authority (CMA) gathered feedback from more than 60,000 consumers before deciding to reject the Sainsbury’s/Asda supermarket merger. We gather feedback from seven experts – including counsel to Sainsbury’s and the chief economist of the consumer group Which? – on this decision.

One of the CMA’s concerns was the risk of coordinated effects in areas where online supermarket Ocado isn’t present. Yet internet retail may be where automated pricing is most likely to blur the lines between legal coordinated effects and illegal coordination. We scan the few enforcement actions brought thus far to address this new kind of collusion, and the much larger number of reports, studies and conference panels highlighting how artificial intelligence could bring us cartels via robot.

On the flip side of fears about sellers raising prices are worries about buyers exercising market power to suppress prices. Arnold & Porter partners Deborah Feinstein and John Schmidt take a transatlantic look at how monopsony has gone mainstream. We hope you enjoy these articles, as well as the surveys of the German and Australian competition bars, an interview with Federal Cartel Office president Andreas Mundt and more.